479 F.

2d 313

UNITED STATES of America, Appellee,

v.
Patrick J. O'SHEA, Appellant.
No. 73-1142.

United States Court of Appeals,

First Circuit.
Submitted May 7, 1973.
Decided May 21, 1973.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit

Judges.
COFFIN, Chief Judge.
Petitioner, Patrick J. O'Shea, was convicted in early 1967 of bank robbery
and assault with a dangerous weapon, 18 U. S.C. Sec. 2113(a) and (d),
and sentenced that same year to twenty years in prison. Before imposing
sentence, the court stated that "[i]n deciding upon the sentence, I consider
as elements against you your previous records, which are serious, your
having served time in state prison, the seriousness of the offense here, and
all of the circumstances. The only factor which I consider to be in your
favor is that this was not as aggravated an armed robbery as some are . . .
[and thus] not a case for imposition of the maximum sentence, which is
recommended by the government." Petitioner's conviction was affirmed
by this court in an unpublished memorandum and order in March 1971.
Apparently desirous of voiding his sentence, in late 1972 petitioner moved
in forma pauperis in the district court for a copy of the pre-sentence report
considered by the judge before pronouncing the twenty-year sentence and
for a transcript of the sentencing proceedings, alleging conclusorily that
the report contained "false and untrue information". He seemingly relied
upon our recent decision in United States v. Picard, 464 F. 2d 215 (1st Cir.
1972), in which we held that, subject to certain restrictions, the sentencing
court must make known to a defendant the substance of a presentence
report, to the extent it is relied upon. In denying petitioner's motions, the
district court here distinguished Picard on the grounds that petitioner's

trial counsel never requested a copy of the pre-sentence report and that
"the court did not place general reliance upon the pre-sentence report as is
more frequently the case when conviction is based upon a plea of guilty or
a trial of short duration." Treating the district court's ruling as a denial of a
Sec. 2255 motion, we affirm its decision, but on the different ground that
Picard does not apply to sentences imposed prior to the date of its
decision.
When procedural rights are sought to be applied retroactively, "the criteria
guiding resolution of the question implicates (a) the purpose to be served
by the new standards, (b) the extent of the reliance by law enforcement
officials on the old standards, and (c) the effect on the administration of
justice of a retroactive application of the new standards." Stovall v.
Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).
Cf. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973).
This test applies whether the rights be viewed as constitutional, see e. g.,
DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
(1968), or as emanating from other sources, see, e. g., Fuller v. Alaska,
393 U.S. 80, 89 S.Ct. 61, 21 L. Ed.2d 212 (1968). See also Desist v.
United States, 394 U.S. 244, 256 n. 1, 89 S.Ct. 1030, 22 L.Ed.2d 248
(1969) (Harlan, J., dissenting). Measured by this yardstick, our holding in
Picard must be said to be of no avail to petitioner.

To be sure, the purpose to be served by requiring limited disclosure of the presentence report is salutary and important. The opportunity for allocution may
be meaningless in many cases if little is known of the information which might
influence the court's imposition of sentence. The role of the appellate courts in
the sentencing process, presently consisting generally of review for abuse of
discretion, consideration of improper factors or failure to consider appropriate
ones, cf. United States v. Walker, 469 F.2d 1377 (1st Cir. 1972), depends, for
its restricted but proper fulfillment, upon the identification of factors affecting
the imposition of sentence. And perhaps most important, the deprivation of
liberty inherent in any sentence should not be magnified as the result of any
false data which may have infested the pre-sentence report. But the extent to
which the soundness of the sentencing process and the right of allocution have
been affected by clandestinely viewed, and perhaps somewhat erroneous, presentence reports is a "question of probabilities". Stovall, supra, 388 U.S. at 298,
87 S.Ct. 1967. Thus, while our holding in Picard is "justified by the need to
assure the integrity and reliability of our system of justice, [it] undoubtedly
[would] affect cases in which no unfairness [was] present" if it were to be
retroactively applied. Id. at 299, 87 S.Ct. at 1971.1

Moreover, the extent of the reliance by our district courts on the old rule that
pre-sentence reports may be withheld from a defendant was significant. Our
holding in Picard was not foreshadowed, and it evidenced a departure from
tradition, including what we viewed in Picard, supra 464 F.2d at 218-219 n. 4,
as an overly broad reading of Williams v. New York, 337 U.S. 241, 69 S.Ct.
1079, 93 L.Ed. 1337 (1949) and Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct.
421, 3 L.Ed.2d 516, reh'g denied, 359 U.S. 956, 79 S.Ct. 737, 3 L.Ed.2d 763
(1958).

Perhaps most relevant here, however, is the fact that if Picard were to be
applied to sentences imposed before the date of its decision, it "would have an
impact upon the administration of [the] criminal law so devastating as to need
no elaboration." Tehan v. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15 L.Ed.
2d 453 (1966). It would mean, quite simply, the re-sentencing of virtually all
those previously sentenced.2

In similar situations where the purpose of a ruling was to avoid a harm, the
existence of which is merely problematical, where past reliance was extensive,
and the anticipated consequences for the administration of our laws would be
disastrous, the Supreme Court has recognized that we "may in the interest of
justice make the rule prospective . . ." Linkletter v. Walker, 381 U.S. 618, 628,
85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965). See also Johnson v. New Jersey,
384 U.S. 719, 726-727, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan, supra,
382 U.S. at 410, 86 S.Ct. 459; Stovall, supra 388 U.S. at 297, 87 S.Ct. 1967; De
Stefano, supra.3 In accordance with these principles, we refuse to apply Picard
to instances in which sentencing occurred before the date of our decision.

Affirmed.

While procedural rights relating to imposition of sentence do not affect the

integrity of the fact-finding process which determines guilt or innocence, we
feel that retroactive application of these rights is properly analyzed in
accordance with principles concerning the trial process. Cf. Morrissey v.
Brewer, 408 U.S. 471, 480, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)

This, of course, is not to say that a due process violation could not be made out
by specific allegations and proof of sufficiently serious reliance on false
information

In Stovall, for example, the Court recognized that "a conviction which rests on

a mistaken identification is a gross miscarriage of justice", id. 388 U.S. at 297,

87 S.Ct. at 1970, yet refused to apply retroactively the exclusionary rules set
forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178
(1967). In DeStefano, the Court noted that contempt tried before a jury rather
than before the judge who was the object of the contemptuous behavior "would
be more fairly tried", id. 392 U.S. at 634, 88 S.Ct. 2093, yet refused to apply
retroactively Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522
(1968)